Dear X,
On 3 December 1998, you addressed a complaint to the European Ombudsman concerning the rejection of your application to become promoted to an A2 post in the Council of the European Union and of your demand to receive compensation for the material and non-material damage suffered as a consequence.
On 21 December 1998, I forwarded your complaint to the Council of the European Union. The Council sent its opinion on 12 March 1999, and I forwarded it to you on 30 April 1999, with an invitation to make observations. On 20 May 1999, you sent me your observations on the Council's opinion.
On 25 May 1999, your wife wrote to me and submitted two notes to me which she had addressed to the Council.
On 13 September 1999, I wrote to the Council asking for further information in relation to your case.
On the same day I wrote to you in order to ask you to provide me with information on an application which you had lodged with the Court of First Instance. You supplied this information in a letter of 22 October 1999.
On 28 October 1999, the Council replied to my request for further information. I forwarded this letter to you on 9 November 1999, with an invitation to make observations.
On 17 December 1999, you sent me your observations on the letter from the Council.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant is an A 3 grade official of the Council of the European Union. On 25 September 1997, the Council published a vacancy notice for an A 2 grade post in the Directorate of its Secretariat-General dealing with budget and staff regulation matters, to be filled by transfer or by promotion. According to the notice, the person to be chosen for the post inter alia needed to have an adequate knowledge of the general principles and procedures applicable in budget and staff regulation matters. The complainant and three other candidates applied for the post. The Secretary-General of the Council appointed a consultative selection committee which interviewed the candidates. By letter of 5 November 1997, the Secretary-General of the Council informed the complainant that his application had been unsuccessful and that another candidate had been chosen. The successful candidate, Mr H., was also an A 3 grade official.
On 4 February 1998, the complainant lodged a complaint under Article 90 (2) of the Staff Regulations. In this complaint, he demanded the annulment of the decision of 5 November 1997 rejecting his application. He also asked the Council to compensate him for the material and non-material damage suffered as a consequence of this decision. On 4 June 1998, the Council rejected this complaint.
On 4 December 1998, the complainant turned to the Ombudsman. Attached to his complaint was a note in which the complainant described the background to his complaint. The complainant alleged (1) that the Council had infringed Article 45 (1) of the Staff Regulations and that the procedure had been irregular, (2) that the Council had infringed Article 5 (3) of the Staff Regulations and (3) that there had been a misuse of power. In the context of the latter allegation, the complainant claimed that in a case decided by the Court of First Instance in 1992 the Council had produced and used a document (a note drawn up by the Secretary-General of the Council on 23 May 1990) which contained untrue statements. The complainant suggested therefore to the Ombudsman that he should notify the competent national authorities of these facts.

THE INQUIRY

The Council's opinion
In its opinion, the Council made the following comments with regard to the complaint:
The principle laid down in Article 5 (3) of the Staff Regulations pursuant to which officials belonging to the same category have to receive equality of treatment obliges the appointing authority not to treat comparable situations in a different way unless doing so is objectively justified. This rule had not been infringed in the present case.
According to Article 45 (1) of the Staff Regulations, promotion is by decision of the appointing authority and is exclusively by selection from among officials who have completed a minimum period in their grade after consideration of the comparative merits of the officials eligible for promotion and the reports on them. The four applications had been treated in a strictly equal way. The Secretary-General of the Council who had been the appointing authority had set up a consultative selection committee to advise him in this matter. This committee had carefully examined the applications and interviewed each of the applicants. On the basis of the report of the committee, the Secretary-General had then proceeded to examine the comparative merits of the candidates, including those of the complainant. On the basis of the results of this examination, the Secretary-General had interviewed the two candidates who appeared to be most suitable before choosing one of them. This procedure was compatible with the requirements of Article 45 (1) of the Staff Regulations.
As to the alleged misuse of power, such an allegation could only be maintained if the complainant had produced objective, relevant and consistent evidence capable of proving it. However, the procedure followed in the present case confirmed that the appointing authority had endeavoured to serve the interest of the institution.
The complainant's observations
In his observations, the complainant maintained his allegations. He stressed in particular that in so far as the issue of the misuse of power was concerned, the Council had failed to reply to his allegation that false documents had been produced and used by the Council in a case brought before the Court of First Instance by a former colleague of his, Mr Schloh(1).

FURTHER INQUIRIES

Request for further information
On 13 September 1999, the Ombudsman wrote to the Council asking for further information in relation to the complainant's case. The Ombudsman asked the Council to specify why the appointing authority had in the present case decided to interview only two candidates whereas in other cases all the candidates appeared to have been interviewed. The Council was also asked to comment on the allegations made by the complainant with regard to a note of the Secretary-General dated 23 May 1990 and its contents.
In its reply of 28 October 1999, the Council made the following comments:
According to the case-law of the Community courts, the appointing authority was free to choose the procedure which it considered most appropriate for examining the applications for a given post. It was therefore entitled to make use of a consultative selection committee in order to carry out preparatory work. In the present case, this consultative committee had been presided by the Director-General of the Directorate-General where the post was to be filled. The other members had been a Director from the Legal Service and the Director in charge of Personnel and Administration. This committee interviewed all four candidates and then prepared a report. On the basis of this report, of the applications of all the candidates and of all other relevant elements the appointing authority had decided to interview the two candidates whom it considered to be best suited for the relevant post. The appointing authority had not been obliged to interview the complainant and the remaining candidate since it disposed of sufficient information in order to take an informed decision. The complainant had already, prior to the present case, applied 19 times for an A 2 grade post. It was true that in an earlier case the appointing authority had interviewed all eight candidates for a post. However, the work-load of the Secretary-General had considerably increased since then.
As to the note dated 23 May 1990 which had been drawn up by the Secretary-General of the Council in charge at that time, the Council did not dispose of any indications which would call in doubt the correctness of its contents. This note had been submitted to the Court of First Instance in Case T-11/91, and in these proceedings it had not been established that the contents of the note did not correspond to reality. It was surprising that the complainant had waited for six years before claiming that the said note contained wrong statements. Furthermore, the complainant had not produced any evidence supporting his claim.
The complainant's observations
In his observations on this letter, the complainant insisted that the appointing authority should have interviewed him personally. The fact that he had already applied for A 2 grade posts before was irrelevant, particularly in view of the fact that he had never had an interview with the Secretary-General who was in charge at the time of the disputed appointment. As to the note dated 23 May 1990, the complainant claimed that it was the Council's duty to prove that its contents were correct.

THE DECISION

1 Infringement of Article 45 (1) of the Staff Regulations and procedural irregularities
1.1 The complainant, an A 3 grade official of the Council of the European Union, had applied for an A 2 grade post in the Council. The Council rejected this application and appointed Mr H. instead. The complainant alleges that by doing so, the Council infringed Article 45 (1) of the Staff Regulations. He also claims that the selection procedure was irregular since the Council had failed to interview him.
1.2 The Council claims that all the applications were carefully examined by a consultative selection committee set up by the appointing authority (the Council's Secretary-General) which interviewed all the applicants and that the Secretary-General then personally interviewed the two most suitable candidates before choosing one of them for the post concerned. According to the Council, it was not necessary for the appointing authority to interview all the candidates.
1.3 According to Article 45 (1) of the Staff Regulations, promotion is by decision of the appointing authority and is exclusively by selection from among officials who have completed a minimum period in their grade after consideration of the comparative merits of the officials eligible for promotion and the reports on them.
1.4 As to the substantial aspect of this head of complaint, the complainant appears to allege that the choice of the appointing authority was not based on the candidate's respective merits. In this context the complainant claims that in so far as the conditions set out in the vacancy notice were concerned, Mr H. did not have an experience or professional knowledge which could be compared to his own. However, the complainant does not claim that Mr H. did not fulfil the conditions set out in the vacancy notice. On the contrary, the complainant explicitly acknowledged that the latter possessed the general professional qualifications required. On the basis of the information provided by the complainant, and bearing in mind that the appointing authority enjoys a wide discretion, it cannot therefore be concluded that the appointing authority necessarily had to give the complainant preference over Mr H. The Council points out that the Staff Regulations do not confer an automatic right to promotion(2), even to officials who meet all the conditions for promotion and that age and seniority can only be taken into account as a subsidiary matter(3). These arguments appear to be reasonable.
1.5 As to the procedural aspect raised by the complainant, the Ombudsman considers that the case-law of the Community courts confirms that the appointing authority is entitled to make use of a consultative selection committee to prepare the comparative examination of the applications which it has to carry out(4). It was on the basis of a report established by such a committee that the Secretary-General proceeded to examine the respective merits of the candidates and to interview two of them. It is true that nothing would have prevented the Secretary-General from interviewing all four candidates himself. The Ombudsman considers, however, that the decision of the Secretary-General to interview only those two candidates who, on the basis of the applications, the report of the committee and other relevant information, appeared to him to be most suitable for the post, appears to be reasonable and in conformity with Article 45 (1) of the Staff Regulations as interpreted by the Community courts. Contrary to what the complainant claims, this provision does not appear to require the appointing authority to interview all the candidates personally. The fact that this was done by the Council in a previous case cannot be considered to be relevant unless it is established that the appointing authority at the Council normally interviewed all the candidates in such cases and departed from this practice in the present case without good reason. The complainant has not shown that such a practice existed.
1.6 The Ombudsman concludes that in these circumstances there does not appear to have been maladministration on the part of the Council in so far as the first allegation of the complainant is concerned.
2 Infringement of Article 5 (3) of the Staff Regulations
2.1 The complainant alleges that the Council infringed Article 5 (3) of the Staff Regulations when it appointed Mr H. to the post.
2.2 The Council of the European Union claims that the principle of equal treatment had not been infringed.
2.3 Article 5 (3) of the Staff Regulations provides that officials belonging to the same category have to receive equality of treatment. In the absence of further clarifications in the complaint or the complainant's further observations, the European Ombudsman assumes that the allegation of unequal treatment is based on the fact that Mr H. and not the complainant was chosen for the relevant post on the one hand and the fact that only two of the four applicants were interviewed by the Secretary-General of the Council. Both these circumstances are also referred to by the complainant in support of his allegation according to which the Council infringed Article 45 (1) of the Staff Regulations and committed procedural irregularities. However, in view of the considerations set out above (see 1) the Ombudsman concludes, on the basis of the evidence available to him, that the complainant has not shown that he was subject to discrimination in these regards.
2.4 The Ombudsman concludes that in these circumstances there does not appear to have been maladministration on the part of the Council in so far as the second allegation of the complainant is concerned.
3 Misuse of power
3.1 The complainant alleges that the appointment of Mr H. to the post concerned constituted a misuse of power by the Council of the European Union.
3.2 The Council retorts that the complainant has failed to produce objective, relevant and consistent evidence capable of proving his allegation.
3.3 The complainant has submitted a note to the Ombudsman in which he describes the background to his complaint. However, the allegations which this note contains as to the reasons for the appointment of Mr H. and the reasons for several appointments to other A 2 grade posts have not been confirmed by the Council. The complainant has not submitted any further evidence corroborating the claims made in this note. The Ombudsman therefore considers that these claims cannot be regarded as having been established. Apart from these claims, the complainant relies on two concrete circumstances in order to substantiate his claim. The first of these is the fact that the complainant was informed of the fact that his application had been unsuccessful in a note which contained what the complainant considered to be a standard formula. However, contrary to what the complainant alleges this is not incompatible with the announcement in the vacancy notice according to which candidates would be informed «individually». The second of these circumstances relates to a note drawn up by the Secretary-General of the Council on 23 May 1990 and submitted to the Court of First Instance in Case T-11/91. The complainant alleges that this document contains false statements since it includes a report on an interview that the Secretary-General claimed to have had with him at that time but that in reality had never taken place. The Ombudsman considers that the complainant has not supplied him with sufficient evidence which would prove this allegation. In the absence of such supporting evidence, the Ombudsman is of the opinion that it is not necessary for him to ask the Council to produce the incriminated document for inspection by the Ombudsman. For the same reason the Ombudsman considers that the conditions of Article 4 (2) of the Statute of the Ombudsman(5) according to which the Ombudsman shall immediately notify the competent national authorities if he learns of facts which might relate to criminal law are not fulfilled.
3.4 The Ombudsman concludes that in these circumstances there does not appear to have been maladministration on the part of the Council in so far as the third allegation of the complainant is concerned.
4 Claim for damages
4.1 In his complaint, the complainant points out that he also objects to the rejection of his demand to receive compensation for the material and non-material damage suffered as a consequence of the rejection of his application for the post concerned.
4.2 The complainant has not put forward any specific arguments in relation to this claim. The Council has not commented on this claim.
4.3 The complainant's claim for compensation is based on the premise that the Council had been wrong to reject his application for the post concerned. As explained above, however, the Ombudsman has come to the conclusion that there is not enough evidence to support the complainant's allegations according to which the rejection of his application for the post concerned constituted maladministration. In view of this conclusion and given that the complainant has not put forward any specific arguments in relation to the rejection of his demand for compensation, the Ombudsman considers that there is no need further to inquire into this allegation of the complainant.
5 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Council of the European Union. The Ombudsman has therefore decided to close the case.
The Secretary-General of the Council of the European Union will also be informed of this decision.
Yours sincerely
Jacob Söderman

---

(1) Case T-11/91 [1992] ECR II-203.

(2) Cf. Case T-3/92 Latham v Commission [1994] ECR-SC II-61 paragraph 50.

(3) Case 293/87 Vaincker v Parliament [ECR] 1989, 23 paragraph 45.

(4) See Case T-11/91 Schloh v Council [ECR] 1992 II-203 paragraph 47.

(5) Decision no. 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the Ombudsman's duties.